Waughop v. Weeks et al. executed in his own name. That sometimes the young men received the certificates, and sometimes H. B. Weeks, and that whenever he wanted anything done, he usually consulted with the old gentleman. This evidence leaves it in doubt whether the witness, H. B. Weeks, was acting for himself in the name of his sons, or as their agent. But it is not inconsistent with an agency, and the interest of a witness to disqualify him from testifying, should be established by a preponderance of evidence, and that evidence should be legitimate. It has been held, and it is believed to be the rule, that the declarations of the proposed witness cannot be received to disqualify him from testifying. They are held to be no more than hear-say evidence, and therefore inadmissible to prove a disqualifying interest. Jones et al. v. Gully, 4 Litt. R. 25; Price v. Chase, 8 Mass. 487; Commonwealth v. Wait, 5 Mass. 261. The party may resort to the voir dire, or he may establish the disqualifying interest by other testimony, but it must be legal. If the declarations made by a witness out of court and not under the sanction of an oath were to be admitted to disqualify him, it would afford an easy and ready mode for an unwilling witness to avoid examination. He would only have to state out of court, in the presence of the friends of the party against whom he is called to testify, that he has an interest in the event of the suit, and they testify to his statements, and he would escape examination. It was also objected that appellees were, under the contract, precluded from showing the amount and value of extra work. And that the superintendent should have determined these questions. Even if the proper construction of the contract authorized Boyington to determine the amount and value of the extra work, he did not make the estimate. The contract only authorized him to make additions to or deductions from the contract price, growing out of a change of plan and the damages thereby sustained. The architects testified that there might be extra work and extra material, without any change of the plan or design of the work. And if it required evidence to prove that fact, it was thus proved. And this evidence stands uncontradicted, and if it be true that this extra work was not occasioned by a change of plan or design, then the superintendent had no right to determine by his certificate its amount and value, and this must have been so regarded by the superintendent, for he does not attempt to fix it, when he estimated the damages sustained by appellant growing out of delay in the completion of the buildings. The appellees only proved the amount and value of the extra labor and materials furnished under the direction of the superintendent, and in this there was no error. Smith, impl., etc., v. Williams. From the verdict in the case, it appears that the jury allowed appellant for all the payments he had made on the contract, and rent for the buildings for the period he was delayed in getting them, after the expiration of the time, when they should have been completed, by the terms of the contract. And we are not able to perceive that the jury allowed appellees anything more than the balance of the contract price, and for the extra labor and materials furnished, at the prices proved, and interest for delay in payment, which was remitted. After remitting the interest the evidence warranted the finding of the jury. The judgment of the court below is affirmed. Judgment affirmed. GEORGE C. SMITH, impleaded with Frank Swick and Richard N. Cowan, Appellant, v. NATHANIEL L. WILLIAMS, Appellee. 22 357 149 528 APPEAL FROM COOK. Where the evidence as to the persons who compose a copartnership is conflicting, The court may send a jury back under instructions, as to how to correct a verdict. THIS is an action of assumpsit, brought by the appellee against the appellant, impleaded, etc. Suit commenced by summons; service on George C. Smith, appellant only, others not found. The declaration contains three special counts and the common counts. The first count is on a note as follows: CHICAGO, ILL., Sept. 30, 1857. Received of N. L. Williams, sixty dollars, cash, which we promise to pay on demand, with interest, at the rate of 3 per cent. per month. $60. FRANK SWICK & CO. The second count is on a note as follows: CHICAGO, ILL., Oct. 1, 1857. Received of N. L. Williams, one hundred and ninety dollars, which we promise to pay on demand, with interest, at the rate of 3 per cent. per month. $190. FRANK SWICK & CO. The third count is on a note as follows: Smith, impl., etc., v. Williams. CHICAGO, ILL., Oct. 13, 1857. Received of N. L. Williams, seventy dollars, in cash, which we promise to pay on demand, with interest, at the rate of 3 per cent. per month. $70. FRANK SWICK & CO. The defendant, George C. Smith, pleaded non-assumpsit, verified by affidavit. Joinder by plaintiff. The cause came on for trial before MANIERRE, Judge, and a jury, on the 30th day of June, A. D. 1858. The cause was submitted to the jury, who, under the directions of the court, brought in a sealed verdict the following morning, which was as follows: We, the jury, find verdict for the plaintiff. Thereupon the court ordered the jury to retire again, and assess the damages, casting interest on the amount of notes at six per cent. per annum. To which said direction the said de fendant, by his counsel, excepted. Afterwards the jury returned a verdict as follows: We, the jury, find verdict for plaintiff, and assess the damages at $334.22. Thereupon said defendant, by his counsel, moved for a new trial and in arrest of judgment. The court overruled said motions. R. S. BLACKWELL, and E. G. ASAY, for Appellant. D. P. WILDER, for Appellee. CATON, C. J. This was an action of assumpsit on three several promissory notes, executed by Frank Swick & Co., a firm composed of Swick, Smith and Cowan, as is averred in the declaration. Smith alone was served with process. He appeared and pleaded non-assumpsit, which he verified by affidavit under our statute. The pleadings admitted the execution of the notes by Frank Swick & Co., and the only question made on the trial, was whether Smith was a member of that firm, when the notes were executed. Upon this point, the testimony was conflicting, some witnesses swearing that he was, and others, that he was not. There was evidence sufficient to support a verdict cither way, and as the jury have settled this conflict in favor of the plaintiff below, we shall not disturb the verdict. When the jury first came into court, they offered a verdict for the plaintiff simply, without assessing the damages. This the court refused to receive, but sent them again to their room, with instructions to assess the plaintiff's damages to the amount of the notes, calculating the interest at six per cent. per annum. Chalmers v. Moore. They afterwards returned a verdict in accordance with this instruction. Of this action of the court, Smith complains, but we think without the least cause. It has often been settled, that if a verdict is returned which is defective, or informal, it is the duty of the court to send the jury back, with directions how the verdict should be made up. If there was any error in this instruction, it was in favor of Smith, for the notes on their face drew interest at three and a half per cent. per month, and the court, when there was no plea of usury interposed, instructed the jury to allow but half per cent. per month. Whatever error there was in this instruction was in favor of Smith, and he cannot complain. The judgment is affirmed. Judgment affirmed. DAVID CHALMERS, Plaintiff in Error, v. THOMAS C. MOORE, ERROR TO PEORIA COUNTY COURT. Where it is designed to recover against the indorser of a note, action must be brought against the maker, at the first term of any court having jurisdiction, although there may not be ten days between the time the note falls due, and the commencement of the term. As an evidence of diligence against the maker of a note, an execution should be levied on goods, and the right of property therein tried, if the goods are in the possession of the maker. Diligence requires the issuance of an execution in the county where the judgment shall have been rendered. Property in the possession of the maker of a note, should be sold subject to the claims of others, so that the rights of parties may be ascertained. An execution should not be returned before its life is extinct, if diligence is to be shown under it. THE declaration was in assumpsit by Thomas C. Moore second indorsee, against David Chalmers, indorser; first count averring due diligence by suit, etc.; second count, insolvency when notes fell due, etc.; and the common counts. There was a trial by jury; motion for a new trial; judgment for $213.69 and costs. Execution to Knox county, dated July 17th, 1858. Received by sheriff, July 20th, 1858. Returned, no property found. Return not dated. Writ not marked filed. Alias execution to Peoria county, dated August 14th, 1858. Returned August 14th, 1858, no property found. Clerk testified that execution to Chalmers v. Moore. Knox county was returned to his office before the alias was issued. Objections of defendant to reading said pleadings, record and proceedings, for that due diligence in the commencement and prosecution of suit had not been shown, and for that no writ of execution had remained in the hands of the proper sheriff for the time required by law to charge an indorser. Objections overruled, exception taken, and pleadings, record and proceedings read. Deposition of Miles Smith shows, that the goods in the shop of makers of note had all been mortgaged. Knew of no property liable to execution. J. W. Moore owns house and lot, worth $450 or $500. Has lived there four or five years. Thinks suit would have been unavailing. Their stock of goods was worth $150 or $200. Deposition of Robert L. Hannaman shows, that makers of note were much embarrassed on 23rd March, 1858. Don't think any part of note could have been made by suit. February 23rd, 1858, I filled up mortgage for $224.54 to J. B. Smith, on the stock of goods owned by the makers. Know of no other property liable to execution. I held claim for $40 against J. W. Moore since 1841, which I have been unable to collect by law. J. W. Moore had lot and house, worth $400 or $500, where he and his family live as their homestead. Don't know how much makers owe. Testimony of Elizabeth Chalmers shows, that between spring and winter of 1857, makers of note bought about $800 worth of goods of indorser, Chalmers, and his predecessors, Quackenbush & Gillis. Paid about $400 or $500. Makers were considered good and prompt pay. Note sued on was given for part of such purchase. Judgment for $157 more rendered to-day. CHARLES C. BONNEY, for Plaintiff in Error. JONATHAN K. COOPER, for Defendant in Error. BREESE, J. The record in this case shows an action by the assignee against the indorser or assignor of a promissory note. Ch. 73, section 7, (Scates' Comp. 291,) provides that every assignor of every promissory note, bond, bill or other instrument in writing, shall be liable to the action of the assignee or assignees thereof, or his or their executors and administrators, if such assignee shall have used due diligence, by the institution and prosecution of a suit against the maker thereof for the recovery of the money or property due thereon, or damages in lieu thereof, with the proviso, that if the institution of such suit |